When foodborne illness outbreaks occur, the Department of Justice (DOJ) sometimes partners with FDA and/or USDA to investigate and potentially pursue both criminal charges and civil violations against the food companies involved. In turn, DOJ recently announced a Voluntary Self-Disclosure Program which is applicable to any alleged corporate misconduct, including alleged misconduct by food companies, prosecutable by a U.S. Attorney. The Program allows DOJ to enter into more favorable resolutions with companies that voluntarily self-disclose that misconduct.
To qualify as a voluntary self-disclosure under the Program, the disclosure must: (1) be voluntary (and not required by a regulation, contract, or DOJ resolution); (2) be prompt (and not in response to threat of disclosure or government investigation); and (3) must include all relevant facts known to the company. Even when a disclosure does not meet all three of these requirements, DOJ has stated that it will still consider the disclosure favorably.
As DOJ evaluates the misconduct, DOJ will consider the disclosure, among other factors, as it determines what resolution to seek. For example, DOJ will consider whether the company cooperated fully with DOJ. DOJ will also consider positively the timely and appropriate remediation by the company. Finally, factors such as the pervasiveness of the conduct throughout the company, impact on public health, and knowledge of executive management will be evaluated by DOJ.
When a company becomes aware of misconduct by employees or agents of the company, DOJ seeks to encourage disclosure. The policy allows DOJ to recommend a reduced fine when a voluntary self-disclosure occurs. In addition, DOJ can utilize resolutions other than a guilty plea in these circumstances, which may allow the company to better remedy any misconduct and recover after the misconduct is resolved.
The full policy is available from the DOJ website.
Liz Presnell is a food industry consultant and lawyer, and has worked in the food industry for nearly a decade. She can be reached at presnell@foodindustrycounsel.com.